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Five years ago, Jose Padilla was the Dirty Bomber, a "known terrorist" at the
core of "an unfolding terrorist plot" to wreak havoc on the United States with
a "radioactive dirty bomb," as then-Attorney General John Ashcroft proclaimed.

But today, as opening statements commence at Padilla's federal
criminal trial in Miami, he seems little more than some poor schmo who the
government says got mixed up in a vague plan to support terrorist mischief
abroad.

Padilla's downgrade from deadly menace to overeager errand boy is a
tale of legal miscalculation and political overkill  a textbook case,
critics say, of the overreaching of the Bush Administration's war on terror.
Initially whisked away to the dark hole where "enemy combatants" go to be
interrogated and held without charges, he emerged more than three years later
as an almost conventional suspect endowed with constitutional rights. Gone
were allegations of a dirty bomb and a scheme to annihilate apartment
buildings. In their place were charges of conspiring to support terrorism and
kill unspecified people overseas.

Padilla might well be a very bad man. But as he and two co-defendants
face these charges in a trial expected to last four months, his story sounds
depressingly familiar. Last September, the Justice Department crowed of 288
convictions or guilty pleas obtained in "terrorism-related cases." But the 288
were under a third of the total investigated, and only 81 brought sentences of
five years or more.

"It's important to know that when the government says this person is
really dangerous, it's not just exaggerating again," says Aziz Huq, director
of the Liberty and National Security Project at New York University's Brennan
Center for Justice. "Virtually every day we're on orange alert in this
country, and at some point that's just not helpful."

Padilla first caught the government's eye in the 1980s. He was a
teenager, a Chicago gang member who pulled an armed robbery and got sent to
juvenile detention. Later, he went to adult prison for brandishing a gun in
Florida, and he stayed there until 1992, when he turned 22. After his release,
Padilla embraced Islam, and in 1998 he moved to Egypt. While on a religious
pilgrimage to Saudi Arabia in February 2000, he got cozy with al-Qaeda
operatives, who recruited him to train for jihad in Afghanistan, the
government claimed in court records. On July 24, 2000, he allegedly filled out
a five-page "Mujahadeen Data Form," or membership application.

Padilla was in Afghanistan when the U.S. invaded in October 2001,
moving "from safe house to safe house," the court records say, until he made
it to Pakistan. There he allegedly met suspected terrorist honchos like Abu Zubaydah (to
whom he allegedly suggested making a dirty bomb) and Khalid Sheikh Mohammad
(who allegedly told him to go to the U.S. and blow up apartment buildings).

In December 2001, a CIA agent received the Mujahadeen Data Form from
an Afghani, who claimed to have found it in a safe house. When Padilla
traveled to Egypt in May 2002, U.S. officials were hot on his tracks. They
followed him on a flight to Zurich, and then to Chicago. On May 8, as he left
the plane at O'Hare International Airport, customs agents pulled him aside and
passed him to the FBI for questioning. He was allegedly carrying $10,000 in
cash, a cell phone and a book containing numbers of al-Qaeda contacts.

Over the next month, the government tried to make a court case
against Padilla. But on June 9, he was abruptly classified as an "enemy
combatant"  someone who engaged in battle against the U.S.  and thrown into the
brig at a South Carolina naval base. The following day in Moscow, Ashcroft
announced Padilla's capture as "a significant step forward in the war on
terrorism."

Padilla's path from the brig to a Miami courtroom has been riddled
with fits and starts. On June 11 in New York (where he had first been held),
the ACLU filed a petition for Padilla's release, arguing that as an American
citizen captured on U.S. soil, he had to be let go or charged and tried in a
civilian court. In December 2003, a federal appeals court in New York agreed,
but then the government dodged a bullet: the Supreme Court ruled that
Padilla's petition should have been filed in South Carolina, not New York.

So Padilla took another shot. This time, a federal judge in South
Carolina ruled in his favor. But in September 2005 the Fourth Circuit court of
appeals decided that, American citizen or not, Padilla could be held by the
military indefinitely under the congressional resolution authorizing the war
in Afghanistan. His lawyers asked the Supreme Court to review the case.

Meanwhile, the legal landscape had shifted. In June 2004, the
justices had ruled that Yaser Hamdi, also an American citizen and an enemy
combatant after capture in Afghanistan, could challenge his detention in
court. Padilla's case seemed at least as strong (he was arrested in the U.S.),
and while we can't be sure that made the difference, the government decided in
November to move Padilla to civilian custody and charge him in federal court.

This shift in strategy did not go over well with the Fourth Circuit,
which blocked the transfer until the feds could explain what looked like an
improper attempt to manipulate the case. No matter. In April 2006 the Supreme
Court refused to hear Padilla's appeal and allowed the criminal charges to
proceed before U.S. District Judge Marcia Cooke.

In her own way, Cooke has also given the government headaches. The
case, which consists of three counts against Padilla and his co-defendants for
"conspiracy to murder, kidnap and maim" and give "material support" to
terrorist activity, "is very light on the facts," she told prosecutors during
a pre-trial hearing last summer. Just as significant, Cooke threw out the
"conspiracy to murder" count because, she ruled, it duplicated the conspiracy
mentioned in the two other counts. Her decision would have eliminated the
possibility of a life sentence, leaving a maximum of 15 years in prison for
each defendant, had it not been overruled by an appeals court.

Even when she has ruled for the government, Cooke has undermined its
strategy. Prosecutors have understandably tried to keep the case focused on
their primary evidence: the Mujahadeen Data Form and hundreds of wiretap
recordings of men talking about spending $3,500 to buy "zucchini" and "playing
football in Somalia." The prosecutors argue that all this is code for
supplying Islamic terrorists in Somalia, Kosovo and elsewhere through a "North
American support cell" allegedly headed by Adham Amin Hassoun  one of the defendants in
the case  and joined by Padilla and the third defendant, Kifah Wael Jayyousi.

But in pre-trial motions, Padilla's attorneys have consistently tried
to steer attention to what happened to Padilla during his three years and
eight months in military detention  and to some degree Cooke has allowed them to
do that. They contend that Padilla was tortured: fed LSD and other drugs,
exposed to extreme temperatures, shackled in "stress positions" and deprived
of sleep. The torture, they argue, made Padilla mentally unfit to stand trial
and so undermined his constitutional right to a fair process that the whole
case should be thrown out.

Cook ultimately rejected both arguments, but not before allowing
defense lawyers to take testimony from guards at the brig. The government
denies that any torture took place, and the guards didn't give up much detail,
but prosecutors fought intensely to block such testimony or let any
information seep into the public record about what might have happened during
Padilla's detention. And if it ever existed, the evidence of a dirty bomb and
attacks on apartment buildings is not expected to appear in the trial  possibly
because it was obtained through improper interrogation of witnesses like
Zubaydah (who says he was tortured) or even of Padilla, who at the very least
was questioned without an attorney present, a no-no under the rules of
criminal procedure.

What prosecutors are left with, then, is an underwhelming case
involving cryptic evidence of a murder and terrorist conspiracy that lacks
names, places or pretty much any other specifics. Even if they manage to pull
off a conviction, we still won't know whether Padilla really was the Dirty
Bomber. And if they don't? The government has the option of reclassifying him
as an enemy combatant, which, believe it or not, could start the process all
over again.